Lester v. Caddo Parish et al

Filing 63

MEMORANDUM RULING re 11 MOTION to Dismiss Complaint against Jason Turner MOTION to Dismiss For Failure to State a Claim Complaint against Jason Turner filed by Jason Turner. Signed by Judge S Maurice Hicks on 10/12/2017. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
JAMES HAYWARD LESTER

CIVIL ACTION NO. 15-2008

VERSUS

JUDGE S. MAURICE HICKS, JR.

STEVE PRATOR, ET AL.

MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING

Before the Court is Defendant, Sergeant Jason Turner’s (“Turner”) Federal Rule
of Civil Procedure 12(b)(6) Motion to Dismiss (Record Document 11) Plaintiff James
Hayward Lester’s (“Lester”) allegations in his Complaint (Record Document 1) and
Amended Complaints (Record Documents 33 and 42) of federal constitutional violations
under 42 U.S.C. § 1983, Louisiana constitutional violations, and torts under state law by
Turner. For the reasons which follow, Turner’s Rule 12(b)(6) Motion to Dismiss is
GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
Lester is a resident of Tarrant County, Texas, but for many years has been
active as a commercial contractor in Shreveport. See Record Document 1 at 1-4. On
February 28, 2003, Lester first filed an application for a Louisiana commercial
contractor’s license in Shreveport. See id. at 4, ¶ 13. This application included a
statement that Lester had never been convicted of a felony or misdemeanor; in fact,
Lester had previously been convicted of a misdemeanor in Texas. See id. at 5, ¶ 25;
see also State v. Lester, 165 So.3d 1181 (La. App. 2 Cir. 05/20/16). Lester received a
valid Louisiana commercial contractor license on May 15, 2003. See Record Document

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1 at 4, ¶ 14. He continually reapplied for such license and held a valid license during all
times relevant to this case. See id. at 4, ¶ 15.
Part of Lester’s contracting work involved making repairs to houses of residents
who applied for grants from the City of Shreveport’s Bureau of Housing and Business
Development. See id. at 4, ¶¶ 16-17. Lester would submit a bid for the requested work
and, if he had the lowest bid, he would receive the contract to perform the work. See id.
In October 2007, Lester was awarded the contract to perform work on Ms. Bessie Lee
Broadway’s (“Broadway”) home. See id. On January 14, 2008, a change order for the
original contract was approved, allowing Lester to receive an additional fee of $5,100 for
additional work. See id. at 4, ¶ 21. On January 24, 2008, Lester, Broadway, and City
Inspector Daniel Lacour (“Lacour”) executed a “Contractor’s Pay-Out Request” to pay
Lester $17,900 for work that Lester had completed. See id. at 4, ¶ 20.
On March 8, 2008, Lacour and Lester orally agreed to a second change order
which would allow Lester to repair and service the furnace in the home rather than
replace it entirely and use the money that would have paid for a new furnace to replace
a deteriorated wall. See id. at 4-5, ¶ 22. Lacour later admitted that he forgot to complete
a physical change order for these changes. See id. On April 1, 2008, Lester, Broadway,
and Lacour executed a second “Contractor’s Pay-Out Request” to pay Lester $7,090 for
the remainder of the work that Lester had completed. See id. at 5, ¶ 23.
On March 19, 2009, Sergeant Turner of the Louisiana State Police and Sergeant
Jay Long (“Long”) and Corporal John May (“May”) of the Caddo Parish Sheriff’s
Department began an investigation into Lester’s activities as a contractor. See id. at 5, ¶
24. During the investigation, Turner found Lester’s previous misdemeanor conviction

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and received documents related to the repairs Lester completed on Broadway’s house.
See id. at 5-6, ¶¶ 24-27. On July 15, 2009, Turner obtained a warrant for Lester’s arrest
for filing or maintaining false public records in violation of La. Rev. Stat. § 14:133 by
submitting renewal applications for his contractor’s license without correcting the
statement that he had not been convicted of a previous misdemeanor. See id. at 6, ¶
28.
Turner, Long, and May continued their investigation of Lester by inspecting
Broadway’s property with another inspector, Timothy Weaver (“Weaver”). See id. at 6,
¶ 29. Weaver later sent a letter to Turner stating that he found that Lester had failed to
install as much insulation in Broadway’s attic as the contract specified. See id. at 7,
¶ 30. On August 29, Turner obtained an arrest warrant for Lester and Lacour’s arrest
for home improvement fraud in violation of La. Rev. Stat. § 14:202.1. See id. at 7 ¶ 31.
In interviews with the officers after the arrest warrants were issued but prior to his actual
arrest, Lacour admitted that he had failed to complete a second change order for
Broadway’s house, and he stated that if the officers had found something wrong with
the repairs to the house, “its my fault, nobody elses . . . I should’ve did my job right
(sic).” See id. at 8, ¶ 32.
On August 31, 2009, Lester and six other African American contractors and
inspectors, including Lacour, were arrested. See id. at 9, ¶ 34. That day, a press
conference “featuring Caddo Parish Sheriff Steve Prator and Caddo Parish District
Attorney Charles Scott” was held on the steps of the Caddo Parish courthouse. See id.
at 9, ¶ 35. At the press conference, Prator announced a $1.5 million scandal involving
the arrestees to defraud the City of Shreveport, a statement that Lester alleges was

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made “falsely and with the full intention to mislead the public.” See id. at 9, ¶ 35. On
November 18, 2009, Assistant District Attorney Lea Hall, Jr. (“Hall”) filed the first Bill of
Information against Lester, charging him with home improvement fraud and filing or
maintaining false public records. See id. at 10, ¶ 36.
On May 25, 2010, the trial of one of the other contractors, James Alex III (“Alex”),
resulted in a mistrial. See id. at 10, ¶ 37. According to Hall’s statements to a reporter
after the trial, the parties had made a joint motion for mistrial after they discovered that
the jury instructions did not reflect the fact that Alex was charged with home
improvement fraud that allegedly occurred under an old statute and an amended
statute. See id. at 10, ¶ 37. On July 8, 2010, Lester filed a Motion to Quash the
Information in his case on the basis of statutory affirmative defenses to home
improvement fraud. See id. at 11, ¶ 38. The trial judge held a hearing on the motion, but
reserved a ruling until after trial. See id. at 11, ¶ 39. On September 28, 2011, Lester
provided the State with photographic evidence that allegedly proved that he was
innocent of the home improvement fraud charge. See id. at 11-12, ¶ 40. On February
14, 2012, a second Bill of Information was filed against Lester which dropped the home
improvement fraud charge and included only the filing or maintaining false public
records charge. See id. at 12, ¶ 41.
On April 9, 2014, Lester filed a Motion to Quash the Amended Information, which
the trial court granted. See id. at 12, ¶¶ 42-43. On July 4, 2014, Sheriff Prator gave an
interview to the editor of local newspaper The Inquisitor in which he stated that he was
frustrated with the fact that Lester had not been prosecuted for home improvement
fraud and stating that Lester had committed theft and abuse of Broadway. See id. at 12-

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13, ¶ 44. That same day, acting District Attorney Dale Cox 1 (“Cox”) sent an email to the
editor of The Inquisitor stating why the home improvement fraud charge against Lester
was dropped and that the State would be appealing the trial court’s decision to quash
the filing or maintaining false public records charge against Lester. See id. at 13, ¶ 45.
On May 20, 2015, the Louisiana Second Circuit Court of Appeal affirmed the trial court’s
decision to quash the filing or maintaining false public records charge against Lester on
the basis of prescription. See id. at 14-15, ¶ 51; see also State v. Lester, 165 So.3d
1181 (La. App. 2 Cir. 05/20/16).
Lester filed this suit against Hall, Scott, Cox, Turner, Long, May, and Prator on
July 2, 2015. See Record Document 1. On October 26, 2015, Turner filed the instant
Rule 12(b)(6) Motion to Dismiss. See Record Document 11. Lester filed his
Memorandum in Opposition to the instant Motion on November 9, 2015. See Record
Document 26. On November 9, 2015, Lester filed a Motion to Amend his Original
Complaint in which he sought to (1) clarify that Turner is being sued in both his official
and individual capacity and (2) ensure that all claims in the Original Complaint that
applied to the “Sheriff Defendants” (Prator, Long, and May) also applied to Turner. See
Record Document 25. On November 16, 2015, the Court granted the Motion to Amend.
See Record Document 27.
On December 1, 2015, Lester filed an Amended Complaint adding Caddo Parish
as a defendant. See Record Document 33. On December 8, 2015, Lester filed another
Motion to Amend his Complaint, along with seventeen numbered exhibits. See Record

1

Former co-defendant Charles R. Scott passed away on April 22, 2015, and First
Assistant District Attorney Cox replaced Scott as acting District Attorney. See Record
Document 20-1.
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Document 40. The Court granted the Motion, allowing Lester to file the Amended
Complaint but stating that no further amendments will be allowed. See Record
Documents 41, 42, and 42-1. This most recent Amended Complaint adds more specific
allegations against some Defendants and cites to the attached exhibits as proof of these
allegations. See Record Documents 42 and 42-1.
On September 29, 2016, the Court granted the Rule 12(b)(6) Motions to Dismiss
filed by Hall and Scott, dismissing all claims against them with prejudice. See Lester v.
Caddo Parish, 2016 U.S. Dist. LEXIS 136192 (W.D. La. 2016). On October 26, 2016,
the Court granted in part and denied in part a Rule 12(b)(6) Motion to Dismiss by Cox,
dismissing most claims against him with prejudice but allowing the defamation claims
under federal and state law to proceed past the Motion to Dismiss stage. See Lester v.
Caddo Parish, 2016 U.S. Dist. LEXIS 148414 (W.D. La. 2016). On March 30, 2017, the
Court granted the Rule 12(b)(6) Motion by Caddo Parish, dismissing all claims against
Caddo Parish with prejudice. See Lester v. Caddo Parish, 2017 U.S. Dist. LEXIS 48031
(W.D. La. 2017).
LAW AND ANALYSIS
I.

Legal Standards.
A. Pleading Standards and the Rule 12(b)(6) Standard

Rule 8(a)(2) of the Federal Rules of Civil Procedure governs the requirements for
pleadings that state a claim for relief, requiring that a pleading contain "a short and plain
statement of the claim showing that the pleader is entitled to relief." The standard for the
adequacy of complaints under Rule 8(a)(2) is now a "plausibility" standard found in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007), and its progeny.

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Under this standard, "factual allegations must be enough to raise a right to relief above
the speculative level . . . on the assumption that all the allegations in the complaint are
true (even if doubtful in fact)." Id. at 555-556, 127 S. Ct. at 1965. If a pleading only
contains "labels and conclusions" and "a formulaic recitation of the elements of a cause
of action," the pleading does not meet the standards of Rule 8(a)(2). Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citation omitted).
Federal Rule of Civil Procedure 12(b)(6) allows parties to seek dismissal of a
party’s pleading for failure to state a claim upon which relief may be granted. In deciding
a Rule 12(b)(6) motion to dismiss, a court generally "may not go outside the pleadings."
Colle v. Brazos Cty., Tex., 981 F.2d 237, 243 (5th Cir. 1993). However, a court may
also rely upon "documents incorporated into the complaint by reference and matters of
which a court may take judicial notice" in deciding a motion to dismiss. Dorsey v.
Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008). Additionally, courts must
accept all allegations in a complaint as true. See Iqbal, 556 U.S. at 678, 129 S. Ct. at
1949. However, courts do not have to accept legal conclusions as facts. See id. Courts
considering a motion to dismiss under Rule 12(b)(6) are only obligated to allow those
complaints that are facially plausible under the Iqbal and Twombly standard to survive
such a motion. See id. at 678-679, 129 S. Ct. at 1949. If the complaint does not meet
this standard, it can be dismissed for failure to state a claim upon which relief can be
granted. See id. Such a dismissal ends the case "at the point of minimum expenditure of
time and money by the parties and the court." Twombly, 550 U.S. at 558, 127 S. Ct. at
1966.

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B. Section 1983 Actions against State Officials
Under 42 U.S.C. § 1983, a plaintiff may file suit against a person acting under
color of state law who has allegedly violated the plaintiff’s constitutional rights. Section
1983 claims do not provide a remedy against States because (1) States are not
“persons” for the purposes of § 1983 and (2) such claims are barred by the Eleventh
Amendment, which grants immunity to the States. See Will v. Michigan Dept. of State
Police, 491 U.S. 58, 66, 109 S. Ct. 2304, 2309 (1989); see Edelman v. Jordan, 415 U.S.
651, 663, 94 S. Ct. 1347, 1356 (1974). “A suit against a state official in his . . . official
capacity is not a suit against the official but rather is a suit against the official's office,"
and thus is "no different from a suit against the State itself." Will, 491 U.S. at 71, 109 S.
Ct. at 2312. Thus, claims against state officials in their official capacity for alleged
constitutional violations are both (1) unavailable under § 1983’s definition of a “person”
and (2) barred by Eleventh Amendment immunity.
However, § 1983 claims against state officials in their individual capacity are not
barred. Rather, “state officials, sued in their individual capacities, are ‘persons’ within
the meaning of § 1983.” Hafer v. Melo, 502 U.S. 21, 31, 112 S. Ct. 358, 365 (1991).
Additionally, “the Eleventh Amendment does not bar such suits, nor are state officers
absolutely immune from personal liability under § 1983 solely by virtue of the ‘official’
nature of their acts.” Id. at 31, 112 S. Ct. at 365. Thus, any damages award against a
state official in his individual capacity will be payable from the individual official’s funds,
not those of the State. See id. at 30-31, 112 S. Ct. at 365.

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C. Section 1983/Monell Claims
In addition to suits against persons acting under the color of state law in their
individual capacities, § 1983 also allows for suits against local government entities
themselves. In Monell v. Dept. of Social Serv., 436 U.S. 658, 98 S. Ct. 2018 (1978), the
Supreme Court held that municipalities and local government agencies cannot be held
liable for constitutional torts under § 1983 under a theory of respondeat superior, but
they can be held liable "when execution of a government's policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury." Id. at 691, 694, 98 S. Ct. at 2036–38. In other words,
merely establishing a constitutional violation by an employee of a local government
entity is not enough to impose liability upon that entity under § 1983.
Rather, to succeed on a Monell claim against a local government entity, the
plaintiff must establish (1) an official policy or custom, of which (2) a policymaker can be
charged with actual or constructive knowledge, and (3) a constitutional violation whose
"moving force" is that policy or custom. McGregory v. City of Jackson, 335 F. App’x 446,
448, 2009 WL 1833958, *2 (5th Cir. 2009), citing Rivera v. Houston Indep. Sch. Dist.,
349 F.3d 244, 247-49 (5th Cir. 2003). Locating an official "policy" or "custom" ensures
that a local government entity will be held liable only for violations of constitutional rights
that resulted from the decisions of those officials whose acts may fairly be said to be
those of the government entity itself. See Bryan Cty. Comm'rs v. Brown, 520 U.S. 397,
403-05, 117 S. Ct. 1382, 1388 (1997).

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D. Qualified Immunity of State Officials
Though a plaintiff may pursue an action under § 1983 against a state official in
his individual capacity, that official, like local officials, may still be protected by qualified
immunity. See Pearson v. Callahan, 555 U.S. 223, 243-45, 129 S. Ct. 808, 822 (2009)
(holding that state law enforcement officers were entitled to qualified immunity
protection). The concern with ending a case at a point of minimum expenditure of time
and money is particularly acute when the defendant raises an immunity defense. See
Ashcroft v. Iqbal, 556 U.S. 662, 685, 129 S. Ct. 1937, 1953 (2009) (“the basic thrust of
the qualified-immunity doctrine is to free officials from the concerns of litigation,
including avoidance of disruptive discovery”) (internal quotations and citations omitted).
In fact, a qualified immunity defense is truly “an immunity from suit rather than a mere
defense to liability.” Pearson, 555 U.S. at 231, 129 S. Ct. at 815. Because of the
important public policy behind the qualified immunity doctrine, a higher pleading
standard applies in evaluating a plaintiff’s complaint against a public official in his
individual capacity once the official has raised a qualified immunity defense. See
Schultea v. Wood, 47 F.3d 1427, 1433-34 (5th Cir. 1995) (en banc).
Once the defendant raises a qualified immunity defense, the plaintiff carries the
burden of demonstrating the inapplicability of qualified immunity. See Club Retro LLC v.
Hilton, 568 F.3d 181, 194 (5th Cir. 2009). First, the court must determine whether the
plaintiff alleged sufficient facts to make out a violation of a constitutional right. See
Pearson, 555 U.S. at 232, 129 S. Ct. at 816. Second, the court must determine whether
the constitutional right at issue was “clearly established” at the time of the defendant’s
alleged misconduct. Id. at 232, 129 S. Ct. at 816. A defendant who can validly raise a

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qualified immunity defense will enjoy its protection so long as the allegedly violated
constitutional right was not clearly established at the time of the violation. See id. The
qualified immunity inquiry turns on “the objective legal reasonableness of the action,
assessed in light of the legal rules that were clearly established at the time it was
taken”. Id. at 244, 129 S. Ct. at 822.
E. Qualified Immunity under the Louisiana Constitution
In Moresi v. State, the Supreme Court of Louisiana explained that though the
Louisiana Constitution creates a private right of action against those who violate rights
secured thereunder, those who act under the color of state law in doing so are entitled
to the protection of qualified immunity from liability for violations of the Louisiana
Constitution. 567 So.2d 1081, 1091-95 (La. 09/06/1990). In so holding, the Court
applied the same standard as federal law for deciding whether a person’s actions are
protected by qualified immunity. See id. at 1094. Thus, Louisiana applies the same
standard as federal law for deciding whether a person’s actions are protected by
qualified immunity.
II.

Analysis.

Lester alleges that Turner violated his constitutional rights in a number of ways.
Lester’s federal constitutional claims against Turner are as follows: (1) “malicious
prosecution and/or wrongful conviction;” (2) a Monell claim for “failing to ensure that [he]
knew how to analyze a statute and that [he] understands the words and terms in the
context of the statute so as not to wrongfully conclude that a crime has been
committed;” (3) a Monell claim for failing to “adequately consider exculpatory evidence
even after a warrant is obtained but before a warrant is executed;” (4) a Monell claim for

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failing to “verify and organize evidence in a way to assure that the evidence is valid;”
and (5) civil conspiracy to deprive Lester of his constitutional rights by acting in concert
“to fabricate or obtain by suggestive means the statement of Timothy Weaver,” which
was allegedly false and was based on false photographs. Record Document 1 at 15-29.
Lester also filed the following claims against Turner under state law: (1) intentional
infliction of emotional distress (“IIED”); (2) negligent infliction of emotional distress
(“NIED”); and (3) violations of La. Const. Art. I, §§ 2, 3, 5, 12, 13, 15, 16, 20, 22, and 24.
Record Document 1 at 25-27. Lester originally filed suit against Turner only in his
individual capacity, but later amended his Complaint such that all claims against Turner
are both individual and official capacity claims. See Record Documents 1, 25, and 27.
Lester bases all of these claims on a number of specific factual allegations
against Turner. These specific factual allegations are that:
(1) on March 19, 2009, Turner began investigating Lester’s background
and requesting documents related to his background, particularly
Lester’s application for a contractor’s license from the Louisiana State
Licensing Board;
(2) on May 7, 2009, Turner received certified copies of documents
confirming Lester’s Texas prior misdemeanor conviction;
(3) on June 5, 2009, Turner received certified copies of Lester’s name
change;
(4) on June 11, 2009, Turner received documents from the City of
Shreveport concerning Mrs. Broadway and her property at 5704
McAlpine St. in Shreveport;
(5) on July 15, 2009, Turner obtained a warrant for Lester’s arrest for the
crime of filing or maintaining false public records under La. Rev. Stat.
§ 14:133 based on an allegedly faulty premise and an obvious
misinterpretation of the statute and law;
(6) on July 31, 2009, Turner, Long, and May accompanied Weaver to
5704 McAlpine St. to inspect the property;
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(7) on August 18, 2009, Turner received a letter from Weaver describing
the state of the insulation in the attic of the 5704 McAlpine property, a
letter that contained false, fraudulently obtained statements about the
state of the property and the work Lester performed on it;
(8) on August 20, 2009, Turner obtained an arrest warrant for Lester for
Home Improvement Fraud under La. Rev. Stat. § 202.1 “based on [a]
faulty understanding of the . . . statute and completely ignoring the
affirmative defenses enumerated within the statute which” allegedly
would have eliminated the investigation; and
(9) on August 24, 2009, Turner, Long, and May interviewed Daniel Lacour
and asked him about Lester’s work on 5704 McAlpine.
Record Document 1 at 8, ¶¶ 24-32.
A. Lester’s Claims Against Turner in His Official Capacity
i.

Lester’s Monell Claims Against Turner Fail as a Matter of Law.

Lester’s Complaint contains three different Monell claims against Turner.
Originally, these Monell claims were only against Prator, Long, and May, the “Sheriff
Defendants” as labeled in Lester’s Original Complaint. See Record Document 1.
However, Lester’s first amendment to his Complaint stated that he wished to add all
claims against the “Sheriff Defendants” as claims against Turner as well, so these
Monell claims are all against both Turner and the “Sheriff Defendants” under Lester’s
current Complaint. See Record Documents 25 and 27.
The Monell claims against Turner fail, however, for two reasons. First, as
explained in Section I, C, supra, Monell claims are claims against a municipal or local
policymaking authority for "when execution of a government's policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury." Monell v. Dept. of Social Serv., 436 U.S. 658, 694, 98
S. Ct. 2018, 2037-38 (1978). These types of claims simply cannot be brought against
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state officials in their official capacity or state government entities. A claim seeking
damages against a state official in his official capacity or a state entity for an alleged
unconstitutional policy or custom is barred by both (1) the fact that States are not
“persons” under § 1983 and (2) Eleventh Amendment immunity. 2 See Will v. Michigan
Dept. of State Police, 491 U.S. 58, 66, 109 S. Ct. 2304, 2309 (1989); see Edelman v.
Jordan, 415 U.S. 651, 663, 94 S. Ct. 1347, 1356 (1974).
Second, Lester’s Monell claims against Turner fail because, even if such claims
were applicable to state officials or entities, Turner is not a policymaker. As this Court
explained in its Memorandum Ruling dismissing all Monell claims against Defendant
Hall, the proper defendant in a § 1983 Monell claim is “the official or government body
with final policymaking authority over the person who committed the violation.” Lester v.
Caddo Parish, 2016 U.S. Dist. LEXIS 136192 at *19 (W.D. La. 2016), citing Burge v.
Parish of St. Tammany, 187 F.3d 452, 469 (5th Cir. 1999). Though Lester alleges that
Turner was a “present or former Louisiana State Trooper, detective, or supervisor,” he is
unquestionably not the person with final policymaking authority over the Louisiana State
2

Of course, under the Ex Parte Young doctrine, a plaintiff can obtain prospective
injunctive relief and declaratory relief against a state official who is violating his or her
constitutional rights. 209 U.S. 123, 28 S. Ct. 441 (1908). This doctrine "permits federal
courts to enjoin state officials to conform their conduct to requirements of federal law,"
even if substantial costs to a State would result therefrom. See Milliken v. Bradley, 433
U.S. 267, 289, 97 S. Ct. 2749, 2762 (1977). To determine whether a plaintiff has alleged
a proper claim under the Ex Parte Young doctrine, a federal court "need only conduct a
straightforward inquiry into whether the complaint alleges an ongoing violation of federal
law and seeks relief properly characterized as prospective." Verizon Md. Inc. v. Public
Serv. Comm'n of Md., 535 U.S. 635, 645, 122 S. Ct. 1753, 1755 (2002) (internal
citations and quotations omitted). Lester’s Complaint only alleges past constitutional
violations by Turner and seeks injunctive relief only to prevent Defendants “from
retaliating against Plaintiff . . . or those representing him in this case.” Record Document
1 at 29, ¶ 116 (C). Thus, Lester has not stated a claim for prospective injunctive relief
against Turner for an ongoing constitutional violation under the Ex Parte Young
doctrine.
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Police. Record Document 1 at 3, ¶ 8. The Louisiana State Police is a sub-unit of the
Louisiana Department of Public Safety, an independent executive branch agency of the
state government. See La. Rev. Stat. § 36:401, et seq. As such, an individual state
trooper like Turner, even if he were in some supervisory role, would not qualify as the
final policymaking authority for the Louisiana State Police. Therefore, all of Lester’s
Monell claims against Turner must be dismissed.
ii.

Lester’s Other Claims against Turner in His Official Capacity also
Fail as a Matter of Law.

In addition to these three Monell claims, Lester also filed other federal
constitutional claims against Turner in his official capacity: (1) “malicious prosecution
and/or wrongful conviction” and (2) civil conspiracy to fabricate evidence. Record
Document 1 at 15-16 and 23-24. “A suit against a state official in his . . . official capacity
is not a suit against the official but rather is a suit against the official's office," and thus is
"no different from a suit against the State itself." See Will v. Michigan Dept. of State
Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312 (1989). Section 1983 claims do not
provide a remedy against the State because (1) States are not “persons” for the
purposes of § 1983 and (2) such claims are barred by the Eleventh Amendment. See id.
at 66, 109 S. Ct. at 2309; see Edelman v. Jordan, 415 U.S. 651, 663, 94 S. Ct. 1347,
1356 (1974). Therefore, these claims against Turner in his official capacity must also be
dismissed.
B. Lester’s Federal Claims against Turner in His Individual Capacity
Unlike claims against state officials in their official capacity, claims against state
officials in their individual capacity are cognizable under § 1983. See Hafer v. Melo, 502
U.S. 21, 30-31, 112 S. Ct. 358, 365 (1991). Thus, the Court must address Lester’s (1)
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“malicious prosecution and/or wrongful conviction” and (2) civil conspiracy to fabricate
evidence claims against Turner in his individual capacity. Record Document 1 at 15-16
and 23-24. First, the Court will address Lester’s wrongful conviction claim, then his
malicious prosecution claim, and finally his civil conspiracy claim.
i.

Lester’s “Wrongful Conviction” Claim against Turner

Lester’s “wrongful conviction” claim against Turner fails as a matter of law.
Logically, a claim for wrongful conviction cannot proceed unless the plaintiff has actually
been convicted of a crime as a result of the defendant’s actions. Here, it is undisputed
that Lester was never convicted of either home improvement fraud or filing or
maintaining a false public record. See State v. Lester, 165 So. 3d 1181 (La. App. 2 Cir.
05/20/2015). Thus, Lester’s wrongful conviction claim against Turner in his individual
capacity must be dismissed. See Lester v. Caddo Parish, 2016 U.S. Dist. LEXIS
136192 at *15 n.1 (W.D. La. 2016) (similarly concluding that Lester has no claim for
wrongful conviction because he has never been convicted of home improvement fraud
or filing or maintaining a false public record).
ii.

Lester’s “Malicious Prosecution” Claim Against Turner

In Castellanos v. Fragozo, an extensive en banc opinion, the Fifth Circuit
explained that all of the federal circuit courts “have been inexact in explaining the
elements of a claim for malicious prosecution brought under the congressional grant of
the right of suit under 42 U.S.C. § 1983.” 352 F.3d 939, 945 (5th Cir. 2003). The Court
held that “‘malicious prosecution’ standing alone is no violation of the United States
Constitution.” Id. at 942. “Causing charges to be filed without probable cause will not
without more violate the Constitution.” Id. at 953. Rather, “the initiation of criminal

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charges without probable cause may set in force events that run afoul of explicit
constitutional protection – the Fourth Amendment if the accused is seized and arrested,
for example . . . [but] such claims of lost constitutional rights are for violation of rights
locatable in constitutional text . . . not claims for malicious prosecution.” Id. at 953-54.
To proceed on what has been erroneously referred to as a “malicious prosecution” claim
under § 1983, then, the Court held that a plaintiff must identify the constitutional right
that was allegedly violated by the institution of a prosecution against the plaintiff. See id.
at 945 (“we must insist on clarity in the identity of the constitutional violations asserted”).
In the instant action, the section of the Original Complaint in which Lester states
his “malicious prosecution and/or wrongful conviction” claim against Defendants does
not make reference to a specific constitutional right that the Defendants allegedly
violated. See Record Document 1 at 15-16, ¶¶ 52-58. However, this section does state
that as a direct result of Turner and the other Defendants’ actions, Lester was
“wrongfully arrested and prosecuted.” Id. at 16, ¶ 58. Thus, though Lester makes no
specific citation to a particular constitutional provision in this section or his amendments
to the Original Complaint, this reference to a wrongful arrest is enough to identify the
particular constitutional right that was allegedly violated–the right under the Fourth
Amendment to be free from unreasonable seizures. See id.; see also Record
Documents 25, 27, 33, 40, 41, 42, and 42-1; see Castellanos, 352 F.3d at 959 (when a
plaintiff claims constitutional violations related to pretrial events like an arrest, the Fourth
Amendment is the proper constitutional provision on which the claim is based).
Unlike his co-defendant Cox and his former co-defendants Scott and Hall, Turner
does not qualify for absolute immunity protection for instituting legal proceedings

Page 17 of 32

against Lester because Turner is a law enforcement officer rather than a prosecutor.
See Lester v. Caddo Parish, 2016 U.S. Dist. LEXIS 136192 (W.D. La. 2016); see Lester
v. Caddo Parish, 2016 U.S. Dist. LEXIS 148414 (W.D. La. 2016). However, Turner has
asserted the defense of qualified immunity from suit on all claims. See Record
Documents 11 and 11-1. Once a defendant raises a qualified immunity defense, the
plaintiff carries the burden of demonstrating the inapplicability of qualified immunity. See
Club Retro LLC v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009). First, the court must
determine whether the plaintiff alleged sufficient facts to make out a violation of a
constitutional right. See Pearson v. Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 816
(2009). Second, the court must determine whether the constitutional right at issue was
“clearly established” at the time of the defendant’s alleged misconduct. Id. at 232, 129
S. Ct. at 816. If Turner’s actions were objectively reasonable in light of clearly
established law, even taking Lester’s factual allegations as true, then Lester’s claim
must be dismissed. See id. at 244, 129 S. Ct. at 822 (the qualified immunity inquiry
turns on “the objective legal reasonableness of the action, assessed in light of the legal
rules that were clearly established at the time it was taken”).
The Court finds that Lester has failed to overcome Turner’s qualified immunity
defense. Lester’s Memorandum in Opposition to the Motion to Dismiss points out
alleged deficiencies in the Motion to Dismiss, arguing that the Motion’s arguments
“ignore” certain portions of Lester’s Complaint. Record Document 26 at 3-4. The
Memorandum in Opposition also argues that Turner’s “incompetence” in misinterpreting
the filing or maintaining false public records statute and in assembling the evidence
against Lester for the home improvement fraud charge “is not covered under qualified

Page 18 of 32

immunity.” Id. at 5-6. Lester’s Memorandum in Opposition states the general rules for
qualified immunity with citation to numerous cases. See id. at 2-3. However, it contains
no in-depth discussion of the cases cited and no comparison of the facts of this case to
the facts of similar cases in which a qualified immunity defense was overcome. See id.
It may be true, as Lester argues, that “even if there is no closely analogous case
law, a right can be clearly established on the basis of ‘common sense.’” Id. at 3, quoting
Giebel v. Sylvester, 244 F.3d 1182, 1189 (9th Cir. 2001). Nonetheless, Lester still bears
the burden of overcoming the qualified immunity defense. See Club Retro LLC, 568
F.3d at 194. A conclusory assertion that a law enforcement officer’s misinterpretation of
statutes and mistakes in assembling evidence for an arrest warrant “constitute
incompetence . . . which is not covered under qualified immunity,” without more, is not
enough to satisfy this burden. Record Document 26 at 5. For this failure alone,
dismissal of Lester’s Fourth Amendment claim would be proper.
Additionally, the Court’s own research and analysis of qualified immunity also
confirms that Turner is entitled to qualified immunity from suit on this claim. Lester’s
allegations

against

Turner

focus

on

Turner’s

investigation

of

Lester,

his

misinterpretation of the filing false or misleading public records statute, his failure to
consider affirmative defenses under the home improvement fraud statute, and his errors
in assembling evidence for the home improvement fraud charge. See Record Document
1 at 8, ¶¶ 24-32; see Record Document 26 at 5.
a. Turner’s Actions Regarding the
Maintaining False Public Records.

Arrest

for

Filing

or

With respect to the filing or maintaining false public records charge, the Court
finds that Lester’s allegations, taken as true, fail to show that Turner’s actions are not
Page 19 of 32

protected by qualified immunity. In dismissing this charge against Lester, the Louisiana
Second Circuit Court of Appeal first held that the charge was untimely with respect to
“filing” a false public record because Lester first filed the application for a contractor’s
license in 2003, and the charge was not filed until 2009. See State v. Lester, 165 So.
1181, 1184-87 (La. App. 2 Cir. 05/20/2015). Second, the Court held that the term
“maintaining” within the statute applied only to “those charged with the legal requirement
of record retention,” not members of the public who have simply filed records with public
offices. Id. at 1187. Thus, Lester’s strongest argument regarding the filing or maintaining
false public records charge is as follows: (1) Turner was incompetent in misinterpreting
the statute and obtaining an arrest warrant for Lester on this charge; (2) therefore, there
was no probable cause for the arrest; and (3) because there was no probable cause,
Turner violated Lester’s Fourth Amendment rights.
The Court rejects this argument. At the time when Turner sought an arrest
warrant, even under Lester’s allegations, he had undertaken a thorough investigation
into Lester’s background and had found (1) Lester’s Texas misdemeanor charge for
possession of marijuana, (2) Lester’s application to become a licensed contractor, and
(3) Lester’s applications to renew his contractor’s license. See Record Document 1 at 56, ¶¶ 24-28. It is undisputed that Lester was actually convicted of the Texas
misdemeanor charge and that he misrepresented this fact on his application for a
contractor’s license. See Record Document 1; see also State v. Lester, 165 So. 3d at
1183 (Lester’s answer to the application question regarding past criminal convictions
“was indeed inaccurate”). The statute in question provides, in pertinent part, that:

Page 20 of 32

A. Filing false public records is the filing or depositing for record in any
public office or with any public official, or the maintaining as required by
law, regulation, or rule, with knowledge of its falsity, of any of the following:
...
(3) Any document containing a false statement or false representation of a
material fact.
La. Rev. Stat. § 14:133.
As stated, the qualified immunity defense provides immunity to a government
official so long as his or her actions are objectively reasonable in light of clearly
established law. See Pearson v. Callahan, 555 U.S. 223, 244, 129 S. Ct. 808, 822
(2009). Under these circumstances, the Court finds that Turner’s conclusion that there
was probable cause to seek an arrest warrant from a judge for filing or maintaining false
public records was objectively reasonable in light of clearly established law. The opinion
in State v. Lester explains, under Louisiana’s rules for interpreting criminal statutes and
in the absence of any rules requiring a contractor to “maintain” his original application
for a license, why (1) the time period for prosecuting Lester for the offense had passed
and (2) Lester’s renewal applications could not constitute “maintaining” a false public
record under the statute. See 165 So. 3d at 1183-87. However, the Court is unaware of
any authority requiring law enforcement officers to engage in complex statutory
construction before seeking an arrest warrant. Qualified immunity protects an officer’s
mistakes about what the law requires so long as those mistakes are reasonable. See
Saucier v. Katz, 533 U.S. 194, 205, 121 S. Ct. 2151, 2158 (2001). The ordinary, plain
meaning of “maintain” is “to keep in an existing state (as of repair, efficiency, or
validity).” Webster’s New Collegiate Dictionary, “Maintain,” 693 (1977) (emphasis
added).

Page 21 of 32

When Turner sought the arrest warrant, the documents in his possession showed
that Lester had filed a false public record and that he failed to ever correct his false
statement in that record even though he had renewed his contractor’s license several
times. See Record Document 1 at ¶¶ 24-28. "Probable cause exists when the totality of
facts and circumstances within a police officer's knowledge at the moment of arrest are
sufficient for a reasonable person to conclude that the suspect had committed or was
committing an offense.” United States v. Nunez-Sanchez, 478 F.3d 663, 666-67 (5th
Cir. 2007). Under the ordinary, plain meaning of the statutory text and the evidence
available to Turner, Turner could reasonably (though erroneously) have concluded that
Lester’s failure to correct his false representation in his applications to renew his
contractor’s license constituted “maintaining” a false public record within the four-year
period for prosecuting this crime, giving Turner probable cause to seek an arrest
warrant from a judge. See McBride v. Grice, 576 F.3d 703, 707 (7th Cir. 2009) (as a
general rule, “once an officer has established probable cause, he may end his
investigation”). Turner’s mistake of law in seeking an arrest warrant for Lester for filing
or maintaining false public records was objectively reasonable. At the very least,
Louisiana courts’ interpretation of this statute was not so clearly established that Turner
should have known of his mistake of law at the time he sought an arrest warrant for
Lester. Therefore, Lester cannot base a § 1983 claim for the violation of his Fourth
Amendment rights on Turner’s actions regarding this arrest. See Hunter v. Bryant, 502
U.S. 224, 227, 112 S. Ct. 534, 536 (1991) (“even law enforcement officials who
reasonably but mistakenly conclude that probable cause is present are entitled to
immunity").

Page 22 of 32

b. Turner’s Actions Regarding
Improvement Fraud.

the

Arrest

for

Home

The Court also finds that Lester’s allegations against Turner regarding the arrest
for home improvement fraud, taken as true, fail to overcome Turner’s qualified immunity
defense. Again, with respect to this charge, Lester alleges that Turner (1) failed to
consider affirmative defenses that may have applied to Lester’s case and (2) failed to
properly obtain and organize the evidence for this charge. See Record Document 1 at 8,
¶¶ 24-32, 38, 52-58, 63, and 75. 3
It appears that the Fifth Circuit has not yet decided whether evidence supporting
an affirmative defense is relevant to the probable cause inquiry. See Dressner v. Crowe,
2013 U.S. Dist. LEXIS 131987 at *6-7 (E.D. La. 2013) (finding that the Fifth Circuit has
declined to address this issue in the past). This means that any argument on the basis
of a failure to consider affirmative defenses is almost certainly precluded because the
law in this area was not clearly established at the time Turner sought an arrest warrant
for Lester on the home improvement fraud charge. See Pearson v. Callahan, 555 U.S.
223, 232, 129 S. Ct. 808, 816 (2009).
However, even assuming arguendo that this conclusion is incorrect, Lester’s
claim on the basis of the affirmative defense argument would fail even in those circuits
that have held that officers must at least consider affirmative defenses in making a
probable cause determination. Other circuits have held that an officer investigating a
3

Lester also alleges that Turner, Long, May, and Prator conspired to fabricate evidence
for this charge as an alternative to the allegation that they merely committed
investigatory errors. The Court addresses those factual allegations in Section II, B, iii,
infra. Additionally, though the allegations of failure to properly obtain and organize the
evidence for the home improvement charge are contained in one of Lester’s Monell
claims, the Court will consider it for the purposes of Lester’s Fourth Amendment
wrongful arrest claim. See Record Document 1 at 17 and 22, ¶¶ 63 and 75.
Page 23 of 32

possible crime “may not ignore conclusively established evidence of the existence of an
affirmative defense, but the officer has no duty to investigate the validity of any
defense.” Hodgkins v. Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004). Here, Lester
alleges that Turner ignored the affirmative defense that applies when a home
improvement contractor “has written verification of job completion.” Record Document 1
at 11, ¶ 38, citing La. Rev. Stat. § 14:202.1(C)(6). 4 Lester alleges that he had such
written verification. See id. Lester attached two documents labeled “Contractor’s Payout
Request” to his most recent Complaint, both of which appear to be signed by Lacour
and Broadway. See Record Document 40 at 18-19. It is unclear whether Lester
contends that these documents constituted written verification of job completion, but the
Court will nonetheless take it as true that he had verification of job completion.
However, taking all of Lester’s allegations as true, the Court finds that the
evidence available to Turner did not “conclusively establish” that this affirmative defense
was met. Hodgkins, 355 F.3d at 1061. Lacour and other city inspectors were charged
with filing or maintaining false public records as a result of Turner’s investigation. See
Record Document 1 at 9, ¶ 34. According to Lester’s complaint, Lacour told Turner that
“we [city inspectors], somethings (sic) we just sign off and be through with it instead of
trying to pressure these guys [contractors] into doing it.” Id. at 8, ¶ 32. An investigating
officer could reasonably conclude that this statement calls into question the validity of
any document signed by Lacour or any of the other associated city inspectors in
performing their home inspection duties, including any written verifications that
contracting jobs were completed. Under other circumstances, the existence of written
The statute was amended in 2009, 2012, and 2014, and the statute no longer contains
the affirmative defense to which Lester refers. See La. Rev. Stat. § 14:202.1.
4

Page 24 of 32

verification of job completion might have “clearly established” that this affirmative
defense applied; if that were the case, Turner could not have reasonably concluded that
probable cause existed for home improvement fraud. Hodgkins, 355 F.3d at 1061.
However, under these circumstances, Turner’s conclusion that probable cause existed
was objectively reasonable in light of clearly established law.
Lester’s allegations regarding potential errors by Turner in obtaining and
organizing the evidence are somewhat unclear. Lester alleges that “there was some
type of mistake, either accidental or on purpose that resulted in a wrong photograph of
the attic being used as evidence.” Record Document 1 at 23, ¶ 75. He alleges that
Turner should have gone into the attic and checked it himself “instead of relying 100%
on Mr. Weaver.” Id. Assuming that this is true (aside from the conclusory allegation that
the photographs were fraudulent), Lester has not stated a claim for a violation of the
Fourth Amendment under these allegations. Weaver was a property inspector, and was
therefore familiar with construction and remodeling. See Record Document 1 at 6, ¶ 29.
Turner’s reliance on a property inspector’s statements and observations of the work
performed on the house in question in seeking an arrest warrant for Lester was
objectively reasonable under clearly established law. See Hunter v. Bryant, 502 U.S.
224, 228, 112 S. Ct. 534, 537 (1991) (officers may rely on both their personal
observations and “reasonably trustworthy information” from other sources in making a
probable cause determination). Therefore, the Court finds that Lester cannot base a
§ 1983 claim for a violation of his Fourth Amendment rights on Turner’s actions
regarding this arrest.

Page 25 of 32

iii.

Lester’s Civil Conspiracy Claim Against Turner

As an alternative theory to Lester’s claim that Turner committed some negligent
error in organizing the evidence for an arrest warrant for Lester on the home
improvement fraud charge, Lester claims that Turner, May, Long, and Prator conspired
to deprive Lester of his constitutional rights “not to be deprived of liberty without due
process of law [and] not to be illegally seized and detained.” Record Document 1 at 2324, ¶ 78. Specifically, Lester claims that “Defendants acted in concert to fabricate or
obtain by suggestive means the statement of Timothy Weaver” and that “the information
in [Weaver’s letter describing the work performed on Mrs. Broadway’s attic at 5704
McAlpine St.] was false along with the photographs of the attic that the Sheriff
Defendants submitted in their report.” Id. at 24, ¶ 79. Lester alleges that Turner, Long,
May, and Prator were motivated to fabricate this evidence by “a disliking or hateful
discriminatory attitude toward . . . African-American persons.” Id. at 24, ¶ 80. The Court
rejects this argument.
The defense of qualified immunity is available to state officials accused of
wrongdoing under 42 U.S.C. § 1985(3). McKee v. Lang, 393 F. App'x 235, 238 (5th Cir.
2010). As explained in Section I, D, supra, because of the important public policy behind
the qualified immunity doctrine, a higher pleading standard applies in evaluating a
plaintiff’s complaint against a public official in his individual capacity once the official has
raised a qualified immunity defense. See Schultea v. Wood, 47 F.3d 1427, 1433-34 (5th
Cir. 1995) (en banc). Once the defendant raises a qualified immunity defense, the
plaintiff carries the burden of demonstrating the inapplicability of qualified immunity. See
Club Retro LLC v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009). Lester fails to demonstrate

Page 26 of 32

the inapplicability of the qualified immunity defense as it pertains to his § 1985(3) claim
in his Memorandum in Opposition to Defendant’s Motion to Dismiss. Rather, Lester in a
short paragraph cites to his complaint and repeats that Turner and Weaver were
complicit in depriving Lester of due process and to not be illegally seized and detained.
See Record Document 26 at 6.
However, assuming arguendo, that Lester is able to overcome Turner’s qualified
immunity defense, Lester fails to allege sufficient facts to state a claim under 42 U.S.C.
§ 1985(3). To state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege: “(1) a
conspiracy involving two or more persons; (2) for the purpose of depriving, directly or
indirectly, a person or class of persons of the equal protection of the laws; and (3) an
act in furtherance of the conspiracy; (4) which causes injury to a person or property, or a
deprivation of any right or privilege of a citizen of the United States.” Hilliard v.
Ferguson, 30 F.3d 649, 652–53 (5th Cir. 1994). Thus, “the plaintiff must show the
conspiracy was motivated by a class-based animus.” Id. at 653.
Taking the facts of Lester’s complaint as true and construing those facts in the
light most favorable to Lester, Lester’s complaint does not allege a course of conduct
creating a violation of 42 U.S.C. § 1985(3). Lester’s complaint merely recites the
elements required to prove civil conspiracy filling in the elements with the facts of his
case. Lester’s complaint is speculative concerning his §1985(3) claim rather than
plausible. See Bell Atlantic Corp. v. Twombly, 550 U.S. 555-556, 127 S. Ct. 1955, 1965
(2007). Lester fails to allege sufficient operative facts were the Court can draw a
reasonable inference that Turner was involved in a conspiracy to deprive Lester of his
constitutional rights.

Page 27 of 32

Nonetheless, even if this Court were to assume that Lester alleged sufficient
operative facts to meet elements one, two, and three (this Court considers the factual
allegations merely a recitation of the elements under § 1985(3) and conclusory), Lester
fails to allege specific facts to make out a violation of a constitutional right. As the Court
found supra, Lester has not suffered a violation of his Fourth Amendment rights. The
actions taken by Turner were objectively reasonable as he was working concurrently
with May and Long in an effort to curb white collar crimes in the Shreveport/Bossier
community. Therefore, Lester fails to state a claim upon which relief can be granted
under § 1985(3).
Moreover, Lester fails to allege facts sufficient to establish that the conspiracy
was motivated by a class-based animus. The undisputed fact that Lester was arrested
with six other African American contractors and inspectors, see Record Document 1 at
9, ¶ 34, is not enough to show that racial considerations motivated the Defendants’
conduct. See Derischebourg v. Clark, No. 15-CV-1712, 2016 WL 98617, at *8 (E.D. La.
Jan. 8, 2016) (The factual assertion by the plaintiff that he is an African-American is
insufficient to establish a U.S.C. § 1985 civil conspiracy claim). In Ducksworth v. Rook,
the court held that the plaintiff may be an African American, and he may have been
harassed and beaten by police officers. However, the previous premise does not equate
to the conclusion that he was harassed and beaten by police officers because he is
African American. No. 14-CV-146-KS-MTP, 2015 WL 3796065, at *4 (S.D. Miss. June
18, 2015), aff'd, 647 F. App'x 383 (5th Cir. 2016).
Lester’s complaint is entirely devoid of any specific factual allegations that racial
considerations motivated Turner’s conduct. See Hamilton v. Serv. King Auto Repairs,

Page 28 of 32

437 F. App'x 328, 329 (5th Cir. 2011) (unsubstantiated and conclusory claims of racial
discrimination under 42 U.S.C. §§1985 and 1986 lacked merit). Lester’s allegation that
Turner, Long, May, and Prator were motivated to fabricate this evidence by “a disliking
or hateful discriminatory attitude toward . . . African-American persons” is a cursory,
conclusory allegation that does not meet the pleading standard under Federal Rule of
Civil Procedure 12(b)(6), and the Court does not have to accept Lester’s conclusory
allegations of civil conspiracy as true. See Iqbal, 556 U.S. at 678. Accordingly, this
Court finds that Lester’s civil conspiracy claim against Turner should be dismissed.
C. Lester’s State Constitutional claims against Turner
As stated in Section I, E, supra, government officials’ protection under
Louisiana’s law of qualified immunity is essentially identical to the protection afforded by
federal law. See Moresi v. State Through Dept. of Wildlife and Fisheries, 567 So. 2d
1081, 1091-95 (La. 1990). Thus, qualified immunity protects Turner from suit as to
Lester’s state constitutional claims to the extent they are based on acts protected by
qualified immunity. See Moresi, 567 So. 2d at 1093 (The same factors that compelled
the United States Supreme Court to recognize a qualified immunity for state officers
under § 1983 require the [Louisiana Supreme Court] to recognize a similar immunity for
them under any action arising under the state constitution). As explained in Section II,
B, iii, supra, Turner is protected by qualified immunity for his actions in investigating
Lester and obtaining a warrant for his arrest for the charges of filing or maintaining false
public records and home improvement fraud. Thus, because qualified immunity protects
Turner from suit on the basis of these actions under federal law, all of Lester’s state
constitutional claims must be dismissed.

Page 29 of 32

D. Lester’s State Law IIED and NIED claims against Turner
Lester’s complaint fails to overcome the heightened standard required to be
successful on IIED and NIED claims. To recover for IIED, a plaintiff must establish (1)
that the conduct of the defendant was extreme and outrageous; (2) that the emotional
distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict
severe emotional distress or knew that severe emotional distress would be certain or
substantially certain to result from his conduct. Nicholas v. Allstate Ins. Co., 765 So. 2d
1017, 1022 (La. 2000). The Louisiana Supreme Court in White v. Monsanto Co. stated:
The conduct must be so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized community.
Liability does not extend to mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities. Persons must necessarily be
expected to be hardened to a certain amount of rough language, and to
occasional acts that are definitely inconsiderate and unkind. Not every
verbal encounter may be converted into a tort; on the contrary, “some
safety valve must be left through which irascible tempers may blow off
relatively harmless steam.”
White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991), quoting Restatement
(Second) of Torts § 46 (1965).
Furthermore, the court in Nicholas determined that it was not enough that a defendant
acted with an intent which was tortious or even criminal in order to prove that the
conduct was extreme and outrageous. 765 So. 2d at 1022.
Apart from Lester’s inability to allege facts sufficient to show that Turner’s
conduct was extreme and outrageous, Lester’s complaint is a mere recitation of the
elements required to succeed on an IIED claim. See Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 1949 (2009) (If a pleading only contains "labels and conclusions"
and "a formulaic recitation of the elements of a cause of action," the pleading does not
Page 30 of 32

meet the standards of Rule 8(a)(2)). As the Court held supra, Turner’s conduct
throughout the criminal proceeding against Lester was reasonable rather than extreme
and outrageous. Accordingly, Lester is unable to meet the heightened standard required
to state a claim for IIED; thus, Lester’s IIED claim must be dismissed.
In the alternative, Lester attempts to state a claim against Turner for NIED. To
state a cause of action for NIED, there must be proof that the defendant violated some
legal duty owed to the plaintiff. Haith v. City of Shreveport,, No. 03-CV-2128, 2005 WL
2140583, at *6 (W.D. La. Sept. 1, 2005).The plaintiff must also meet the heavy burden
of proving outrageous conduct by the defendant. Id. at *6.
As indicated supra, Lester has not pled facts to show that Lester’s conduct was
outrageous. Moreover, Lester’s negligence claim is undermined because the Court
earlier found Turner’s conduct reasonable. See Roten v. City of Minden, No. 16-CV0381, 2017 WL 1398655, at *8 (W.D. La. Apr. 18, 2017) (“The focus of the qualified
immunity inquiry is reasonableness. By finding the actions of Engi and Young to be
reasonable under the qualified immunity analysis, Roten's state law negligence claims
are undermined.”). Therefore, Lester’s NIED claim must be dismissed.

Page 31 of 32

CONCLUSION
Turner’s Rule 12(b)(6) Motion to Dismiss (Record Document 11) is GRANTED.
All of Lester’s claims against Turner are hereby DISMISSED WITH PREJUDICE.
An order consistent with the terms of the instant Memorandum Ruling shall issue
herewith.
THUS DONE AND SIGNED, in Shreveport, Louisiana, on this the 12th day of
October, 2017.

Page 32 of 32